Lujan v. Yates

Filing 40

ORDER signed by Senior Judge Lawrence K. Karlton on 8/13/2009 DENYING petitioner's 39 Motion for Certificate of Appealability. (Marciel, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. WARDEN JAMES YATES, Respondent. / Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 29, 2009, this court issued an order stating that respondent's motion to dismiss stands submitted. On June 3, 2009, petitioner filed a motion for a certificate of appealability. Under the provisions of 28 U.S.C. § 2253, petitioner must be granted a certificate of appealability in order to proceed with the appeal. Fed. R. App. P. 22(b). Section 2253 also provides that an appeal in a habeas corpus proceeding may only be taken from a "final order." 28 U.S.C. § 2253; see also Browder v. Director, Ill. Dep't of Corrections, 434 U.S. 257, 265 (1978); Van Pilon v. Reed, 799 F.2d 1332, 1335 (9th Cir. 1986). Final orders are those that leave nothing to be done but the execution of the judgment. Catlin v. United States, 324 U.S. 229, 233 (1945). In the context of habeas corpus proceedings, a final order disposes of all claims and either denies or grants habeas relief. Blazak v. Ricketts, 971 F.2d 1408, 1410 (9th Cir. 1992) (per curiam). 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MICHAEL V. LUJAN, Petitioner, No. CIV S-06-0923 LKK EFB P

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The court will not issue a certificate of appealability in this action. The order from which petitioner appeals did not dispose of any of his claims and did not deny or grant relief. It simply acknowledged that respondent's motion to dismiss is pending and that petitioner has filed an opposition brief. Accordingly, it is hereby ORDERED that petitioner's June 3, 2009 motion for a certificate of appealability is denied. DATED: August 13, 2009.

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